Last Friday's massacre at Sandy Hook Elementary School in Connecticut has prompted calls for urgent gun reform in the United States. But even if the politicians muster the political courage to tighten access to firearms, will the courts let them do it?

Transcript

Damien Carrick: Hello, Damien Carrick with you. Welcome to the Law Report.

The right to bear arms in the USA—even if the politicians muster the political courage to address gun control, would the courts uphold or strike down any such legislation?

And later, the former Victorian schoolteacher wrongly jailed for child sex offences, alleged to have taken place some 30 years ago. As you’d expect, she feels totally let down by the justice system.

Josephine Greensill: Well, I think it’s let me down in a big way. All the way from the officers who arrested me, right through to the judge in the trial—every step of the way. Because surely someone could’ve stopped this at various stages of the process.

Damien Carrick: Josephine Greensill who spent two years, five months and thirteen days in prison before an appeal court quashed her conviction as, ‘unsafe, and unsatisfactory’. And the court went on to say that there was a real possibility of collusion between the two complainants. That’s later.

First, the school massacre in Newtown, Connecticut, which claimed the lives of 20 children and 6 adults. Will President Obama seize the moment and embrace gun control? Is he prepared to expend a huge amount of political capital taking on the powerful gun lobby?

Professor David Cole is a leading constitutional lawyer based at Georgetown University in Washington DC. He’s cautiously optimistic about the prospects of gun control, but, he says it is important to understand just how deeply entrenched the culture of gun ownership is in the American psyche.

David Cole: It is remarkably prevalent; I think there’s something like 300 million people in the United States, I think there are something like 280 million guns in the United States—almost one per person.

Damien Carrick: Do you think that some form of gun control might come out of the terrible events that we’ve been witnessing in Connecticut?

David Cole: Well, I certainly hope so. And I do think that the…at least the immediate aftermath of this tragedy, is…feels different from the prior tragedies and mass shootings that we had over the summer in Colorado and in Wisconsin. The fact that children were—very young children—were the victims, I think has really shaken people and it may, in fact, lead the politicians to take the brave step of proposing some sort of serious gun reform.

Damien Carrick: What might President Obama propose?

David Cole: Well, there’s any number of things could be proposed and, you know, people have talked about banning assault weapons—which is something that congress did in 2004, but was then…or did actually, under President Clinton and then lapsed in 2004. There’s extending licensing and background check requirements to all sales of guns. Currently they cover sales in gun shops but about half of the gun sales in the United States take place at these so-called gun shows, which are not regulated and so anyone who doesn’t qualify to buy a gun in a gun shop can simply go to a gun show.

Banning the kinds of magazines that allow people to shoot 100 bullets in rapid-fire succession—that’s another proposal that’s out there. So, you know, there are a variety of proposals. The real question is, whether it’s politically feasible to push something through.

Damien Carrick: Do you think it is politically feasible?

David Cole: Well, it hasn’t been politically feasible for a very long time. The last national regulation of guns that we had was the assault weapons ban in…during the Clinton administration. It was a huge battle. By the time it was enacted it was filled with so many loopholes that it did very little in terms of actually restricting assault weapons. And, the myth anyway, is that it brought down the Democrats and brought in a Republican congress in the next election. So politicians are very, very nervous to go down this road out of concern that the NRA, the National Rifle Association, and gun owners of America will rally around and oppose re-election of anyone who has proposed or supported gun control legislation.

Damien Carrick: To an outsider, the situation in the USA seems bizarre to say the least. Is this a question of the gun industry, the gun manufacturing industry and the shop owners and what-have-you…is it those groups which are behind the political lobbying, and I’m wondering is there an analogy between big guns and big tobacco? Or am I not reading this correctly?

David Cole: Well, I think…I should say, it seems bizarre to many of us on the inside of the United States as well, this…the power, inordinate power, of the gun lobby. But I don’t think it’s primarily the gun industry. I think the gun industry clearly plays a big role but it’s really a popular movement, and I think it’s driven by the, kind of, red states of America which tend to be those that are not urban, not in the northeast—the south, the west, the great plains—areas where many people live in fairly rural settings where they don’t…where they, number one, they like to hunt. Number two, they, you know, they have a kind of romance with guns, and number three, they don’t feel that they can rely on the sheriff or the police officer to protect them. They’re living out in the middle of nowhere, far off and so they want a gun for their own self-protection. And I think that set of factors has made efforts to regulate guns incredibly difficult in the United States.

Damien Carrick: Well, putting the politics to one side for a moment, let’s talk about the law. You have, of course, the second amendment in the US constitution, which, I think, protects the right to bear arms. You also, I believe, have similar sorts of rights to bear arms in something like 43 of the 50 state constitutions. But there are in fact gun laws at a state and federal level, aren’t there? What can they and can’t they restrict?

David Cole: Right, right. Well, until very recently, the federal constitutional amendment—the second amendment, which protects the right to bear arms—was read to impose almost no restriction on the regulation of guns. The idea was that it was really not about…into protecting individuals’ rights to bear arms, but rather about protecting the state’s rights to maintain a militia. It’s written, ‘a well-regulated militia being central to the preservation of liberty, the right to bear arms shall not be infringed’. And the prevailing notion for over 100 years was, including at the Supreme Court level, was that this was just about the rights of militias to exist, with the idea being that state militia somehow were a check on federal tyranny.

But in the…in 2008, the Supreme Court said, no, this is an individual right to bear arms as well. It doesn’t have to be tied to a state militia and so even if a state wants to regulate arms, it’s limited by the constitution.

Damien Carrick: And that 2008 case, that was Heller and Washington DC and Washington DC was trying to restrict what, the use of handguns, or the possession of handguns?

David Cole: Washington DC was chosen by the, sort of, the gun rights advocates as a particularly good challenge because it had the most restrictive gun law in the country. It prohibited the possession of handguns for basically any purpose, and it was an absolute ban. And the court in the Heller case held that that went too far. But it did say, at the same time, that the right to bear arms is not absolute, that it is subject to reasonable regulation; it said licensing requirements are perfectly permissible, background checks are perfectly permissible. Restrictions on, kind of, new weapons, weapons that go well beyond those that would have been understood to exist at the time of the framing—assault weapons, you know, rapid-fire magazines, and the like—all of those would be reasonable.

So the restriction…and then the court in…a couple of years later, extended this right to bear arms—which in the Heller case applied only to the federal government—extended it in a case involving Chicago to the state governments as well, and struck down Chicago’s ban which was the second most extreme ban on guns in the United States after DC’s.

So those two have been struck down, but courts have upheld all sorts of regulations that…that fall short of bans, with respect to regular guns, and bans of high-powered weapons and the like at the state level. The problem is, regulations at the state level don’t work. I mean, in DC, we had a ban on handguns and DC was flooded with handguns because all you had to do to get a handgun, was go over the bridge to Virginia where you could buy as many handguns as you want, and then you bring it back into DC.

Damien Carrick: So a country of 300 million people, a country of 50 states—can anything happen which will turn the tide in terms of gun violence?

David Cole: Well, as I say, I think, you know, if anything has the chance of turning the tide, the Newtown, Connecticut tragedy does. And the fact that it comes at a time when President Obama has just been re-elected, we don’t have a political campaign, you know, in the immediate future, I think—and President Obama doesn’t need to run for re-election—I think might give him some courage to really push forward something. That said, you know, him putting forward something, doesn’t do the trick; it has to pass congress, and the Democrats control the senate but the Republicans control the house. And as I’m sure your listeners know, the atmosphere in the United States is incredibly divided along partisan lines and so anything the Democrats want to do, the Republicans don’t want to do, no matter what it is—and this gun lobby is still very powerful.

Damien Carrick: Professor David Cole, a leading constitutional lawyer based at Georgetown University in Washington DC. He’s currently in Australia visiting the University of New South Wales and the Castan Centre for Human Rights at Monash University.